On Coordinating Transactions in Information: A Response to Smith’s Delineating Entitlements in Information

Intellectual Property and Patents

Article Snapshot


F. Scott Kieff


Yale Law Journal Pocket Part, Vol. 117, p. 101, 2007


This paper discusses some of the benefits of the patent system for innovators.

Policy Relevance

Policy relevance: Clearly defined patent rights work like property rights and help innovators. Changes that make patent rules more uncertain invite litigation. Large firms will have an advantage, as they do in Japan.

Main Points

  • Treating intellectual property (IP) like property lowers the costs of turning a new idea into an actual product by giving the innovator clear protection.
  • Some support reforms that make patents weaker, so that a copycat would just have to pay money, instead of being made to stop copying.
  • This invites large firms to litigate patents in the hope of exhausting their opponent’s resources, and gaining more information through discovery and settlement proceedings.
  • Property rules also make innovation markets less political, because there are fewer appeals to regulators, courts, or legislators to set the terms of deals.
  • Some think that treating patents as property results in so many rights that innovators are overwhelmed and cannot negotiate is overstated. The theory does not match reality.

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